Request By:
Mr. Gyndel E. Garnett
Superintendent
Graves County Schools
1007 Cuba Road
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Robert L. Chenoweth, Deputy Attorney General
This is in response to your request for a formal opinion from the Office of the Attorney General. You have asked three questions regarding KRS 438.050 which concerns smoking on school premises. Your questions read as follows:
"1. Is it within the confines of the statute for the Graves County Board of Education to permit smoking during the school day by adults in designated areas?
2. Is it within the confines of the statute for the Graves County Board of Education to permit smoking by students on the school premises during the school day in designated areas?
3. Is it within the confines of the statute for the Graves County Board of Education to permit adults to smoke in designated areas and not students and vice versa?"
In a recent telephone conversation, the question has also been raised as to the chewing or snuffing of tobacco products on school premises.
KRS 438.050 reads in full as follows:
"Any person, except adult employees of the school system who smoke in a room on the school premises designated by the superintendent or principal for the purpose, who smokes tobacco products in any school building or any part of any building used for school purposes, or upon school grounds, while children are assembled there for lawful purposes, except in areas in secondary schools designated and supervised by the super-intendent or principal for the purpose, shall be fined not less than one dollar ($1) nor more than five dollars ($5). The exception granted for smoking areas designated by the superintendent or principal shall extend only to schools located in counties containing a city of the first class, a city of the second class, or an urban-county government."
This office has not addressed this statute since it was last amended in 1976.
Prior to the 1976 amendment, this statute prohibited smoking "a cigarette" and contained only one exception to the usual rule of prohibition of smoking on school premises. That exception was for there to be designated a smoking room for adult employees of a school system.
The statute was amended in 1976 to read "tobacco products" rather than just "cigarette. " This office, in OAG 73-175, copy attached, had said that since KRS 438.050 was a penal statute of the malum prohibitum type, it must be literally and strictly construed. That being the case, we concluded in that opinion the statute did not make it a violation to smoke a cigar or pipe -- just for smoking a cigarette. It is now clear the smoking of any tobacco product is included within the statute.
The 1976 amendment also added a second exception to the usual rule prohibiting smoking on school premises. The second exception permits an area to be designated by a principal or the school superintendent in secondary schools for anyone to smoke tobacco products if the school is located in a county containing a city of the first class, second class or an urban-county government. *
Thus, we believe KRS 438.050 can be charted out as follows:
(1) Every school can have a designated smoking room for adult employees of the school system.
(2) Secondary schools located in counties containing a city of the first or second class or urban-county government can have a designated smoking area for all individuals, adults and students.
Now we come back to the questions you have raised. In response to your first question, in view of the fact Graves County does not contain a city of the first or second class or an urban-county government, only the first exception in KRS 438.050 comes into play, which authorizes you as superintendent or the building principal in the various schools to designate a smoking room for the adult school employees.
The above response also answers your second question. The law as applied to the Graves County Schools does not authorize a smoking area to be designated to non-employee adults or school students. To so designate such an area, even by board regulation, would be in violation of KRS 438.050.
Your third question has also been answered. The Graves County Board of Education has no legal authority to designate a smoking area for non-employee adults or for school students. To be noted is that the geographical scope of KRS 438.050 goes to "any part of any school building used for school purposes, or upon school grounds, while children are assembled there for lawful purposes." Thus, as we concluded in OAG 73-175, supra, KRS 438.050 precludes the smoking in a school corridor or auditorium or even at a football game on school grounds while children are present for lawful purposes regardless of whether it is during or after school hours. This office has stated on several occasions that KRS 438.050 is to be enforced by law enforcement authorities. See OAG 66-583, copy attached, and OAG 73-175, supra. We do point out, however, that pursuant to KRS 161.180, teachers and administrators have the responsibility to hold school pupils to a strict account for their conduct.
As for the last question regarding whether KRS 438.050 governs the use of tobacco products on school premises in a manner other than smoking, e.g., chewing or snuffing, we again believe because the statute provides that a violation of its provisions is to result in a fine, the statute must be strictly and literally construed. Thus, just as we at one point concluded, the statute did not prohibit cigar or pipe smoking because of the specific reference to cigarettes, we must now conclude the statute as it is written proscribes only the smoking of tobacco products. We are of the opinion the board of education may regulate under the authority of KRS 160.290 and 160.340 the use of tobacco products, in ways other than smoking, by its employees, other adults and students.
Footnotes
Footnotes
* No consideration is being made in this opinion regarding the limitation of this exception to only schools in Jefferson, Fayette, Boyd, Warren, Kenton, Franklin, Campbell, Daviess and McCracken Counties. See KRS 81.010